1. ' SAEEDUZZAMAN SIDDIQUI, J.--The petitioner has challenged by this petition three notices dt. 12-6- 1978 issued to him by the Income Tax Officer under section 34 of the Income Tax Act, 1922 in respect of years 1969-70, 1970/71 and 1971-72. These notices have been issued to reopen the assessment on the ground of escapement of the income of petitioner from assessment during these years. The following is the background of the case.
2. ' For the assessm ent years 1969-70, 1970-71 and 1971-72 the petitioner duly submitted his return of income which were dated duly finalised by the Income Tax Officer concerned under Order 31-1- 1973. On 17-10-1973 the Inspecting Assistant Commissioner issued notices to the petitioner under section 34-A of the Income Tax Act proposing to reopen the finalised assessment on the ground that these are erroneous and prejudicial to the interest of revenue. The petitioner filed objections to the above notices but these objections were overruled and by order dated 5-2-1974 the Inspecting Assistant Commissioner set aside the assessment orer dated 31-1-1973 and directed the Income Tax Officer to reassess the income of petitioner for the above years in accordance with the observations made in the order dated 5-2-1974. Against the order of Inspecting Assistant Commissioner dated 5-2-1974, the petitioner filed an appeal before Income Tax Tribunal.
3. Notwithstanding the pendency of above appeal before the Tribunal, the Income Tax Officer threatened to re-assess the income of petitioner for the above years. The petitioner accordingly filed a Constitutional Petition (C.P. No,498 of 1974) in this Court and obtained an order for stay of the assessm ent proceedings pending before the Income Tax Officer. However, during the pendency of above petition on 7-9-1976 when it came up for hearing the Court directed the Income Tax Tribunal to dispose of the pending appeal of petitioner within two months' time. In pursuance of the above directive of Court in the above petition, the Income Tax Tribunal heard and decided the appeal of petitioner on 21-10-1976. The Tribunal allowed the appeals of the petitioner and set aside the order of Inspecting Assistant Commissioner and restored the original assessment order dated 31-1-1973.
4. Thereafter, on 12-6-1978 the Income Tax Officer issued the impugned notices to petitioner under section 34 of the Income Tax Act proposing to reopen the assessment for the aforesaid years on the ground that the income of the petitioner escaped the assessment.
5. The learned counsel for the petitioner contends that the issuance of the impugned notices by the Income Tax Officer is wholly without jurisdiction as after the order of the Income Tax Appellate Tribunal dated 21-10-1976 the Income Tax Officer had no jurisdiction in the matter and could not issue the aforesaid notices. It is contended by the learned counsel that the original assessment orders dated 31-1-1973 having been restored by the order of the Income Tax Appellate Tribunal, the same attained finality under Section 33 (6) of the Income Tax Act, 1922, and as such the issuance of the impugned notices amounts to sitting over the judgment of the Tribunal. The learned counsel for the respondent (Department) on the other hand contended that the Income Tax Officer had jurisdiction to reopen the assessm ent under section 34 of the Income Tax Act on other grounds in spite of decision of appellate Tribunal on a particular aspect of the case. After hearing the learned counsel for the parties we are of the view that the Income Tax Officer had no jurisdiction to issue the impugned notices in the case under section 34 of the Income Tax Act. The petitioner has specifically alleged in the petition that there was no material before the Income Tax Officer to justify issuance of notice to petitioner Wunder section 34 of the Act. In the counter-affidavit filed on behalf of the Department there are vague allegations in this regard. The learned counsel for the respondent on our enquiry during the course of arguments produced before us the letter No, JUD. 1
(11) 1973-74/ dated 13-5-1974 issued by the Inspecting Assistant Commissioner to the Income Tax Officer Circle-X, East Zone, Karachi, and stated that the impugned notices were issued on the basis of this letter.
6. ' It is quite clear from the above letter produced by the learned counsel for respondents that this letter was written to Income Tax Officer by the Inspecting Assistant Commissioner as a follow up of his Order dated 5-2-1974 by which he had set aside the assessment order dt. 31-1-1973 and remanded the cases for reassessme nt. The entire material including the letter dt. 13-5-1974 was, therefore available before the Tribunal when it decided the appeal of the petitioner on 21-10-1976.
7. In spite of existence of this letter the Tribunal reached the conclusion that the order of the Inspecting Assistant Commissioner dated 5-274 was not justified on merits and allowed the appeals of the petitioner and specifically restored the assessment order passed by the Income Tax Officer on 31-1-1973. In these circumstances, the letter dated 13-5-1974 could not validly form the basis of notices under section 34 of the Act issued by the Income Tax Officer. It need no mention here that the original order of assessment in these cases, dated. 31-3-1973 stood merged in the order of Tribunal when it confirmed the same by its order dated 21-10-1976 and as such the same could not be reopened under section 34 of the Act by Income Tax Officer.
8. We accordingly allow this petition and declare that the impugned notices dated 12-6-1978 issued by the Income Tax Officer to petitioner under Section 34 of the Income Tax Act are without lawful authority and of no legal effect. However, we will make no order as to costs in the circumstances of the case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.